72 Am. U. L. Rev. 61 (2022).

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Abstract

This Article is the last in a series of four articles exploring the Supreme Court’s destructive legacy on environmental protection in the United States. This Article specifically explores the relationship between the Supreme Court and pollution through the lens of four landmark cases. Perhaps unsurprisingly, these cases together evince the Court’s tendency to distort both facts and law to reach outcomes that will benefit industrial polluters and emitters alike.

In the first case, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, the Court disregarded EPA regulations banning the discharge of toxic materials into waters to approve a pollution-heavy mining operation. In the second case, Michigan v. EPA, the Court struck down the EPA’s attempts to regulate coal plants for failure to consider the costs, despite the absence of any statutory direction to do so. In the third case, West Virginia v. EPA, the Court stalled meaningful climate change regulation by granting West Virginia’s extraordinary request to stay the case itself. Finally, the Article discusses Juliana v. United States, a case whose turbulent history led it to the Supreme Court twice, and which was ultimately led to its defeat in the Ninth Circuit.

This Article critiques the Court’s reasoning in each of these cases—demonstrating the at-times Olympian level of mental gymnastics the Court employs to avoid embracing pollution control at any cost. While some read these cases as the Court fashioning the United States into a kind of paradise for polluters, the reader is invited to contemplate these cases and decide for yourself.

* Professor of Law, and David Boies Chair in Public Interest, Law, Tulane University. The Author thanks Shahnoor Khan and Nate McCabe, as well as the other members of the American University Law Review.